Huffman v. Sigler

154 N.W.2d 459 (1967) 182 Neb. 290

Harold Eugene HUFFMAN, Appellant,
v.
Maurice H. SIGLER, Warden Nebraska Penal and Correctional Complex, Appellee.

No. 36636.

Supreme Court of Nebraska.

November 24, 1967.

Harold Eugene Huffman, pro se.

Clarence A. H. Meyer, Atty. Gen., Richard H. Williams, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

BOSLAUGH, Justice.

The defendant was convicted of breaking and entering with intent to steal and sentenced to 15 years' imprisonment. The judgment was affirmed by this court upon appeal. State v. Huffman, 181 Neb. 356, 148 N.W.2d 321. The defendant now asks to be discharged from custody upon the ground that his sentence in 1966 as a habitual criminal was unauthorized.

In 1958, the defendant was convicted of breaking and entering with intent to steal, robbery, and escape from custody. He was sentenced to imprisonment for 1 year for breaking and entering, 3 years' imprisonment for robbery, and imprisonment for 1 year for escape from custody. The sentences for breaking and entering and escape from custody were concurrent. The sentence for robbery was nonconcurrent and commenced at the termination of the 1-year sentence for breaking and entering.

The defendant contends that the 1958 convictions will not support his sentence as a habitual criminal because his imprisonment was continuous and, in effect, amounted to one 4-year sentence. His contention cannot be sustained.

The statute provides that "Whoever has been twice convicted of crime, sentenced and committed to prison" shall be deemed a habitual criminal. Section 29-2221, R.R.S. 1943. The defendant was thrice convicted of crime, sentenced and committed to prison. It is of no consequence that the defendant was imprisoned continuously from the start of the 1-year sentences until the end of the 3-year sentence. Commonwealth v. Richardson, 175 Mass. 202, 55 N.E. 988.

The petition failed to state grounds for relief in habeas corpus and the writ was properly denied. The judgment of the district court is affirmed.

Affirmed.